supposed to be knotted by the husband's spirit. After reading extracts from Mr. Wilkinson, the solicitor's answer, his honour said that it appeared that nearly all who had made affidavits in support of the defendant's case were spiritualists, and contradicted the plaintiff in many particulars, showing what the conduct and statements of the plaintiff were when they were present. Some of the evidence went to show that the plaintiff treated the manifestations in conversing about them with levity, and in a joking manner. His honour then said that he would refer to passages of the defendant's cross-examination and other evidence. He must, however, state that a comparison of the statements in the plaintiff's affidavits with the cross-examination and Mr. Wilkinson's evidence showed that no reliance could be placed on the plaintiff's statements, uncorroborated by other evidence. Nevertheless, his honour did not hesitate to say that he totally disbelieved the defendant's allegation that she was turned against him in consequence of his refusing to respond to her affection. If this were true it would not assist the defendant's case. But every letter, act, and communication in the case disproved and were inconsistent with this. In approaching the substantial and effective part of his judgment his honour said that he had to consider, first, the merits of the case, and, secondly, the law applicable to it. As to the first, he could have wished the bill so framed as to contain the substance of the evidence and manuscript books relied on to support it; still it could not be said that each party had not had fair notice of all the issues that were to be raised. The question here was, whether two gifts, each supported by irrevocable deeds, were or were not to be upheld; on this the principles of the Court were clear, as expressed in the judgment of Lord Eldon, in Hatch v. Hatch, and Lord Cottenham, in Dent v. Millett. These principles were that in such relationships as guardian and ward, attorney and client, medical man and patient, where undue influence was easy of exercise, the spontaneousness of gifts must be shown by the clearest evidence. On considering the facts of this case it was clear from the outset that the plaintiff was passionately attached to her dead husband, and that she expected to meet him again in the year in which the events in question took place. She had taken to reading spiritualistic works, and had become a believer in their theories. She was superstitious, and open to the influence of visions, one of which—that of a goldenhaired boy, who was to be her son-had had the greatest effect upon her. With her mind well saturated with these things, she made overtures for acquaintance with Home. His honour then detailed the events following her first knowledge of him, and the mode in which the gifts were made. On the defendant Home lay the onus of showing that what she did was the result of her pure volition uninfluenced by him. The defendant denied that he had occasioned any spiritual manifestations at their interviews. But Mrs. Fellows' evidence showed that much more had taken place in the shape of manifestions than he was willing to admit. In short, when the antecedents of both parties, the facts, letters, and actions proved in the case, were considered, it was clear that the transactions were such as should be jealously watched. It was true that the plaintiff for several months was obstinately desirous of supporting the gifts, owing, amongst other causes, partly to fear lest her sanity should be questioned, and his honour was therefore satisfied that the statements that spiritualism had not influenced her mind were contrary to the fact. It was true that the plaintiff had knowledge of business, but this was limited as compared with the defendant's. It was urged that she had independent advice. But it must be borne in mind that the

defendant was in constant communication with her; that she feared the interference of her husband's relatives; that she thought her sanity might be questioned; and that no power of revocation was contained in the deeds, or even suggested to her. All that was done in the way of advice and warning was apparently done more by way of caution against what others might do than of protection of the plaintiff. It was most important that no suggestion of a power of revocation or of the advisability of communicating with the husband's relatives had been made. As before stated, the onus of proving that no influence had been exercised lay on the defendant. From the reasons, facts, and evidence before referred to, he must hold that the defendant had not made out a case in support of the gifts. There must, therefore, be the usual declaration setting aside the gifts as fraudulent and void, a re-transfer and re-assignment of the property must be directed, with usual accounts, by the defendant. Under the circumstances of the case he should not order the defendant to pay more than his own costs. As to the costs of the defendant Wilkinson, the trustee, his answer and evidence had been so enormously increased in length and expense by the charges made against him by the plaintiff, whose statements were so perverse and untrue, that the Court felt itself seriously embarrassed by them; and, therefore, should direct his costs to be paid by the plaintiff. His honour then stated that, knowing nothing of spiritualism beyond what had appeared in the course of the suit, he could not, nor was it his duty to, express his opinion on the merits of the belief. It was not for him to say what might or might not be the effect of peculiar nervous organizations in inducing a belief that certain phenomena were the result of spiritual agency. Nevertheless, the views of the defendant on this matter tended to give him an influence, and his honour felt compelled to that the system was a most mischievous one, and well calculated on the one hand to control the believers in it and to assist the plans of the needy and designing.

say

III.

PROSECUTION OF MR. EYRE.

CHARGE OF MR. JUSTICE BLACKBURN.

THE case of Mr. Eyre, Ex-Governor of Jamaica, came before the Court of Queen's Bench upon a prosecution for high crimes and misdemeanours, in acts of alleged abuse and oppression under colour of execution of his office as Governor of the island.

Mr. Justice Blackburn delivered the following charge to the grand jury:-In the year 1865 Mr. Eyre was Governor of Jamaica, and in October of that year, on the breaking out of an insurrection, Mr. Eyre, as Governor, and in order to put it down, took steps into the legality of which we are now to inquire. It is not disputed that he did, with the assent of his counsel, proclaim martial law, and put it in force; in this sense I mean that he not only caused troops to act in the proclaimed district to put down the insurrection and to suppress armed resistance, but he also caused martial law to be executed in the sense of summary proceedings, superseding the common law; and that a number of persons were tried by this summary process and subjected to severe punishments; and further, that he caused this to be done for a period of thirty days. The ques

tion is, whether in doing these things he did anything for which he ought to be criminally responsible. Now the law upon the subject is of great importance, and when I have explained it to you it will be for you to determine the questions of fact which arise upon it. The prosecution is not under the First Colonial Governors' Act of William III., but under the Act of the 42nd of George III., c. 85, which enacted in substance that if any governor of a colony, or any military officer holding any station in a colony should be guilty of any crime or offence in the exercise or execution of his office, or under colour of it, he shall be liable to be tried here. There is no question that Mr. Eyre did what was done by him as Governor of Jamaica, and that if any of the things he did are crimes or offences they were done in execution or under colour of his office. So the question comes to be, What are the "crimes and misdemeanours and offences' which can be committed, what is the rule or test of the criminal responsibility which may be incurred by a governor when acting, as Mr. Eyre undoubtedly was, as governor, and for the purpose of putting an end to an insurrection ?a question on which it is of great importance that the law should be distinctly laid down. For it is of great importance that it should be known when a governor in such a position can be deemed to have so far exceeded his duty as to be criminally responsible. Upon that question there can be no doubt that the legal duty, and therefore the legal responsibility, of persons in such a position varies very much according to their powers or functions, either by the common law or by any particular statutes. The powers of a governor of a colony are far more extensive, for instance, than those of the lord-lieutenant of a county or the mayor of a borough in England, when a riot or insurrection has broken out, and consequently the things he would be authorized to do, and which he might be blamable if he did not do, would greatly differ. But the principle on which the doctrine rests is the same; the officer is bound to exercise the powers which the law gives him in the manner which under the circumstances would be right, and if he fails in something he ought to do, or which the circumstances render it his duty to do, and he neglects his duty to such an extent as to amount to criminal negligence, then he will be criminally responsible. All this was considered thirty years ago in the case of the Mayor of Bristol, when riots broke out there, which for want of proper steps taken to put them down continued three days, and a great part of Bristol was burnt down. The Government thought that the Mayor was responsible for not having done his duty as Mayor in putting down the riots, and he was therefore prosecuted. That case was the converse of the present. Here the charge against Mr. Eyre is that he exceeded his duty, and did so much more than he ought to have done, that he is criminally responsible; there the charge was that the mayor failed in his duty, and did not do enough. The two questions are correlative, and the law laid down in that case on a trial at Bar by Mr. Justice Littledale, in the name of the Court, affords useful guidance in laying down the principle applicable in the present case. The learned Judge said that a party entrusted with the duty of putting down a riot, whether by virtue of an office of his own seeking (as in the ordinary case of a magistrate), or imposed upon him (as that of a constable), is bound to hit the exact line between excess and failure of duty, and that the difficulty of so doing, though it might be some ground for a lenient consideration of his conduct on the part of the jury, was no legal defence to a charge like the present. Nor could a party so charged excuse himself on the mere ground of honest intention. He might omit acting to the extent of his duty from a perfectly good feeling, and that might be considered in appor

tioning punishment; but the question for the jury must be-whether or not he had done what his duty in point of law required. The subject of inquiry therefore in that case would be-whether the defendant had done all that he knew was in his power to suppress the riots, that could reasonably be expected from a man of honesty and of ordinary prudence, firmness, and activity under the circumstances in which he was placed. Honesty of intention, though not of itself sufficient to exculpate, would form an ingredient in the case to be taken into consideration. The learned Judge then stated as the two points on which the inquiry would turn, whether the defendant used those means which the law requires to assemble a sufficient force for suppressing the riot and preventing the mischief which occurred; and, secondly, whether he had made use of the force which was obtained; and also of his own personal exertion to prevent mischief as might reasonably have been expected from a firm and honest man. ("The King v. Pinney," 3, Barnwall and Adolphus, "King's Bench Reports," p. 958.) The amount of neglect of duty which would make the party criminally responsible cannot be strictly defined. It is not every little failure to perform the duty which would make him criminally responsible. A great failure of duty would. The line may be hard to draw, but it must be drawn in each case by the jury, and they are to say whether they think there was such a failure of duty as to be criminal. That was the law as laid down by this Court in that case. In the present case-where the charge is that Mr. Eyre was guilty of criminal excess— the principle is very much the same, or is the complement of what was then laid down. It seems to me that if the officer does some act altogether beyond his power, so that it never could under any circumstances have been his duty to do it, he would be responsible according to the quality of the act, even though doing it was the salvation of the country. It may be a ground for legislation or for an Act of Indemnity, but there would be no answer to a criminal prosecution. That is in a case of something wholly beyond his power to do. But when it is something which in a possible state of circumstances he would be authorized to do, and which even in an extreme case he might be punishable for not doing, then the case becomes very different. The honesty of intention in such a case is of importance, for if it be shown that he was acting under colour of his office, from an indirect motive, no doubt he would be guilty of an offence; and even if he were imperfectly honest that might not conclusively decide the question. The officer is bound under such circumstances to use ordinary firmness and judgment and moderation; and in such a case the jury have to determine upon the evidence —(1) whether the circumstances were in fact such that what was done really was an excess of duty; (2) whether a person in his position, and having his information and his state of knowledge and belief, and in the exercise of ordinary judg ment and firmness and moderation, must have perceived that it was an excess. Much allowance must be made for a person in such a position; but not too much. The question is whether in the particular case there was so much excess as to be criminal excess. The questions then are (1), whether the acts done by Mr. Eyre were entirely beyond his legal power and competence to do, and such as he never could have had the right or power to do at all? If so, then the acts were illegal, and then, though there may have been ground for applying for the mercy of the Crown or to the Legislature for an Act of Indemnity; and though the acts may have been done with the most honest intention, and may even have been beneficial, there would be no answer to a criminal prosecution. But then, secondly, if what he did were acts which he had in his legal power and

competence to do, and which under proper circumstances he would be bound to do, and for not doing which in certain such circumstances if mischief followed he might be punishable for not doing, then, in that case, the question is, (1) whether the circumstances were such that what he did was in excess: (2) under the circumstances, as they appeared to him-putting yourselves as far as possible in his place. and looking not merely to what the facts were, but what they appeared to him to be -under such circumstances, would a reasonable man, taking into account what he heard or believed, what he would naturally think, supposing he brought, as he was bound to bring, reasonable firmness and moderation to the discharge of his duty-that duty being not only to suppress the rebellion, but also to show a reasonable regard to the rights of individuals, and not to oppress or ill-treat them -would such a man, under such circumstances, have seen and known that he was committing excess? That is a question entirely for you. In a word, was there excess on his part to such an extent as to make him criminally liable? It is necessary now to inquire what were the limits of his power as Governor under such circumstances. What could he do? What had he by law the power of doing? Now that must in the main depend upon the law of Jamaica, a question really and practically for me. Now in the first place, in the case of a colony settled by subjects from this country, they carry with them so much of the law of England as is applicable-that is, they lose no privileges by going out there. In the case of colonies acquired by conquest the foreign law continues until altered, and thus we have the Spanish law in Trinidad, the Dutch law in Demerara, and the French law in the Mauritius, the Crown having the power to alter the law and substitute the English law. In the case of Jamaica there have been some doubts. When Oliver Cromwell took the island the Spaniards had possession of it; but in the time of Charles II., at all events, there was a charter proclaiming the English law, and that law, no doubt, was then in force—that is, the law of England as it was then in force in this country. Then came a further question of great importance. If the laws were to remain unaltered there would be great inconvenience, and therefore it is the prerogative of the Crown to grant to the colony a legislative power to alter the laws, or make new laws to bind the colony. I am surprised to find that any doubt has been thrown upon this, and that it has been supposed that the Colonial Legislature could not alter the law at all, and could not make an Act which should interfere with or alter the privileges of English subjects. No one can surely entertain a doubt upon that point. It was so laid down by the Privy Council in an appeal from the island of Jamaica when the House of Assembly was charged with having done what was illegal, and claimed the power of the English House of Commons to commit for contempt. In that case the late Mr. Baron Parke, delivering judgment, said, having alluded to the grant of a Legislative Assembly to the colony, "That act of the supreme governing authority in England constitutes a Legislative Body in Jamaica, and it gives that body the power, subordinate, no doubt, to that of the Parliament of Great Britain, and subject to its control, if it chooses to exercise it, to enact laws which will bind all the inhabitants of Jamaica and its dependencies. This Assembly is not like a corporation which has a power to make by-laws for the carrying into effect the purpose for which it was established, but it is the supreme Legislative Assembly of the island, authorized to make laws for it with the sanction of the Sovereign" ("Beaumont v. Barrett," Moore's Privy Council Cases). And that view of the law was afterwards with great deliberation confirmed, in another appeal case